John Maginnis: Louisiana politicians challenge historic lawsuit

Louisiana politicians, beware, this is what happens when you establish in the constitution an independent and apolitical board of experts empowered to take legal action to protect the lives and property within its jurisdiction, namely, the Southeast Louisiana Flood Protection Authority-East.

The little levee board that could rattled the crystal in boardrooms around the globe last week by filing a mammoth, historic lawsuit against 97 oil companies. It demands they repair the damage done from decades of digging, dredging and drilling in the coastal marshes that form the New Orleans region's first line of defense against hurricanes.

The suit came as a surprise to the industry that, for all its risk analysis, had to know it was coming, some day. Nonetheless, the flood protection board came under immediate criticism for having worked sub rosa with its lawyers for months without public discussion or collaboration with the Jindal administration, legislators or the west bank flood authority.

The response of Gov. Bobby Jindal and the oil industry could be likened to the drilling rig that blew its top in the Gulf in the same week. The firestorm reaction confirmed to authority board members the wisdom of getting to the courthouse before the combined political forces could strike against them.

This legal action could be the last tree to fall from Hurricane Katrina. Certainly, the constitutional amendment of 2006 creating the consolidated flood protection authority would not have been possible without the devastation of the levee breaks from the 2005 storm. Only with insistent public support behind her was former Gov. Kathleen Blanco able to overcome legislative opponents who wanted to keep in place the local levee board members they had helped to appoint. That post-storm special legislative session vested the east and west authorities with extraordinary powers, including to choose and compensate lawyers, while protecting board members from being summarily removed by the governor.

The board's constitutional independence limited Gov. Bobby Jindal's initial response to name-calling, denouncing the contingency fee contract as a "windfall" for greedy trial lawyers who "hijacked" the suit. A follow-up letter from the administration's coastal restoration chief Garret Graves, while criticizing the board for acting unilaterally and missing the "big picture," civilly suggested a meeting with the flood authority to "discuss a common path forward." Sure, SLFPA-E Vice Chairman John Barry responded, come to the next board meeting.

Changing the rules of the game to thwart the lawsuit in progress would be tricky. Jindal can make three appointments to the authority this year and three next, so it will take almost a year for him to replace a majority of the nine-member board, which voted unanimously to file suit. But restocking the authority with reliable votes won't be so easy, as the law requires that nominations come from the deans of engineering colleges, professional societies and the Public Affairs Research Council.

The governor and oil lobbyists could team up to get the Legislature to limit the companies' exposure. But one bitter lesson the companies have learned in legislative battles over so-called legacy lawsuits for onshore oilfield damages is that the state Supreme Court has not allowed new laws to apply retroactively to cases already filed.

Gov. Jindal says there is a "better approach" than suing, a combination of holding the Corps of Engineers accountable for its river management, making BP fully clean up and pay for the 2010 Gulf oil spill and greater federal revenue sharing from offshore production.

The flood authority would respond that the first two points can be addressed independently of the lawsuit. As for revenue sharing, that begins in 2017 for Louisiana and four other coastal states. The congressional delegation is pushing to move that date up, but the White House said last week it would not support that. Besides, revenue sharing only redistributes tax money the companies already owe for extracting minerals and adds nothing to repair damages.

The Corps of Engineers has put up $14 billion to repair and strengthen the levee system in the New Orleans region. How much should the oil companies pay to restore the eviscerated coastal marshes? That's the question the lawsuit poses, to be answered in a court of law or settled in negotiations. By exercising its constitutional power, the Southeast Louisiana Flood Protection Authority-East has taken its seat at the table.

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John Maginnis: Louisiana politicians challenge historic lawsuit

Louisiana politicians, beware, this is what happens when you establish in the constitution an independent and apolitical board of experts empowered to take legal action to protect the lives and